Congress caves on telecom immunity, but Senator Dodd to block bill

During negotiations with the Bush administration over terms for a new …

The Congressional clash over domestic surveillance intensified yesterday as Senate Republicans outmaneuvered Democrats by sinking attempts to put strict limits on warrantless surveillance and securing a provision that would grant legal immunity to telecommunications companies that assisted with the NSA wiretap program. In response, Senator Christopher Dodd, a Democrat from Connecticut and a 2008 presidential candidate, decided to risk the ire of Congress by attempting to put a hold on the legislation.

The Bush administration and its supporters have been calling for Congress to make the permanent the expanded surveillance powers granted by the Protect America Act. Congressional Democrats proposed the RESTORE Act as a compromise that would facilitate broad surveillance of foreign terror groups while restoring the oversight of the Foreign Intellingence Surveillance Act Court for communications between foreign and domestic surveillance targets.

The RESTORE Act did not include any provisions granting immunity to the telecommunications companies for their previous involvement with the program. President Bush has vowed to veto any surveillance legislation without it.

A party divided

According to the Washington Post, Republicans managed to kill the RESTORE Act by taking advantage of divisions among Democrats. They moved to have the proposal sent back to committee, which would have stalled it long enough to prevent it from passing. Democrats were unable to secure enough votes to oppose the motion to return the proposal to the committee, because progressive Democrats didn't approve of the bill altogether and conservative Democrats were concerned about being labeled soft on terror. The end result is that it was pulled from the floor, and Democrats were forced to make concessions.

After much discussion, senators from both sides of the aisle have reached an agreement with the Bush Administration regarding the terms that will be included in the new legislative proposal. Although the details of the agreement are not yet fully known, the proposal controversially includes immunity grants for the telecoms. If passed, it would effectively halt ongoing eavesdropping litigation against the telecommunications companies that has been winding its way through the court system.

The immunity grant is a big disappointment to privacy advocates, who realize that the court system provides the only means available of uncovering the scope of the program and the extent to which the companies were involved. Congress and the FCC have declined to investigate the matter. Critics of the surveillance program argue that a retroactive immunity grant would elevate the telecommunications companies above the rule of law and prevent them from being held accountable for knowingly engaging in potentially illegal conduct.

Hold on

In response to the immunity grant provision, Sen. Dodd has decided to put a hold on the bill, an extremely risky political move that will put him at odds with his own party. When a hold is placed on a bill, the Senate can override the hold and bring it to the floor by passing a motion to proceed. A particularly determined senator can filibuster, making it so that a three-fifths majority vote is needed to override the hold. By using a hold, Dodd is essentially calling his party out for capitulating to the Republican demands.

"I have decided to place a 'hold' on the latest FISA bill that would have included amnesty for telecommunications companies that enabled the President's assault on the Constitution by illegally providing personal information on their customers without judicial authorization," said Dodd in a statement. "I said that I would do everything I could to stop this bill from passing, and I have."

Dodd can likely afford to take this gamble because he has already decided against running for reelection in the Senate in 2010. He is willing to incur the wrath of his own party in the Senate because he isn't going back next term anyway, and this legislative hold gives him a big opportunity to raise his profile with disenfranchised Democrat voters who are looking for a presidential candidate with a strong position on privacy and civil liberties issues.

As the conflict plays out, Democrats in the Senate will be placed in a difficult position as they decide whether or not to support Dodd's move.